ANDREW JAMES ROSEMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Roseman appealed his convictions and sentences. The appellate court affirmed the judgments but vacated the sentences and remanded for resentencing because the trial court failed to file a written order explaining its reasons for departing from sentencing guidelines and improperly relied on the habitual offender statute, which had been superseded by the guidelines.
The trial court erred by failing to file a written order explaining its reasons for departure, requiring resentencing on all counts. The sentences for counts two and three must be vacated because the departure was based on the habitual offender statute, which the Florida Supreme Court held was superseded by the sentencing guidelines. The retention of jurisdiction over portions of the life sentences must be stricken because the trial court cannot retain jurisdiction over an impossible-to-calculate retention period and because retention is improper under the guidelines now that parole is unavailable.
[1] A trial court's failure to file a written order explaining reasons for a departure sentence constitutes error requiring resentencing.
[2] The habitual offender statute cannot be considered as providing an exemption for a guidelines sentence or as an adequate reason for a departure sentence.
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Join FLexlaw to unlock all legal intelligence“The trial court did not file a written order in this case explaining his reasons for departure. This is error requiring resentencing on all counts.”
Establishes the requirement for written orders explaining sentencing departures
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Join FLexlaw to unlock all legal intelligenceRoseman was convicted on multiple counts. The trial court imposed sentences including consecutive life sentences on counts one and two, and imposed de…
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COBB, Judge.
Finding no error in the entry of the judgments herein, they are affirmed, but the cause is remanded for resentencing for the reasons set forth below.1
The trial court did not file a written order in this case explaining his reasons for departure. This is error requiring resentencing on all counts. State v. Jackson, 478 So. 2d 1054 (Fla.1985); Bouthner v. State, 489 So. 2d 784 (Fla. 5th DCA 1986). Additionally, the sentences for counts two and three are vacated, since it appears that the departure was based on the trial court’s finding that Roseman was an habitual offender because of his past record.2 The Florida Supreme Court has now held that the legislature’s adoption of the guidelines effectively superseded section 775.-084, the habitual offender statute. Whitehead v. State, 498 So. 2d 863 (Fla.1986). Therefore, section 775.084 cannot be considered as providing an exemption for a guidelines sentence or as an adequate reason for a departure sentence.
The trial court also erred by retaining jurisdiction over one-third of each of the two consecutive life sentences (counts one and two), for two reasons: (1) the trial court cannot retain jurisdiction over a retention period which is impossible to calculate, see State v. Mobley, 481 So. 2d 481 (Fla.1986); Kosek v. State, 448 So. 2d 57 (Fla. 5th DCA 1984); and (2) retention is improper under the guidelines, since parole is no longer available. Keys v. State, 473 So. 2d 800 (Fla. 5th DCA 1985). Therefore, the retention of jurisdiction must be stricken upon remand.
AFFIRMED; SENTENCES VACATED and REMANDED.
SHARP and COWART, JJ., concur. . Roseman escaped from custody between the time the trial concluded and sentencing. His contention that the sentencing was therefore improper, since he was not present, is without merit, as he voluntarily waived any right to be present by the escape. In any event, the resentencing ordered by this opinion renders this point moot.
. The trial court did not make any findings concerning guideline departures, but did make oral findings listing bases for retaining jurisdiction, including the defendant’s inability to comply with the law and his lack of remorse. These reasons are insufficient for departure. See Weir v. State, 490 So. 2d 234 (Fla. 5th DCA 1986).
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Hallman v. State, 560 So. 2d 223 (Fla. 1990)…o the other counts, they are governed by the sentencing guidelines, under which there is no parole. Therefore, section 947.16, Florida Statutes (1985), authorizing retention of jurisdiction in order to limit parole is inapplicable. Roseman v. State, 497 So. 2d 986 (Fla. 5th DCA 1986); Carter v. State, 464 So. 2d 172 (Fla. 2d DCA), affirmed, 479 So. 2d 117 (Fla.1985). We strike down that part of the judge’s order purporting to retain jurisdiction. Hallman’s conviction of first-degree murder is affirmed. His d…
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Capuzzo v. State, 578 So. 2d 328 (Fla. 5th DCA 1991)…, 519 So. 2d 751 (Fla. 4th DCA 1988), and Quarterman v. State, 506 So. 2d 50 (Fla. 2d DCA 1987), approved on other grounds, 527 So. 2d 1380 (Fla.1988). We do not agree with our sister courts in Wagner or Quarterman. Our opinion in Roseman v. State, 497 So. 2d 986 (Fla. 5th DCA 1986) was correct and in [*329] conformity with the majority rule in this country in respect to waiver of the right to be present at sentencing by reason of the defendant’s voluntary flight. It is logical to hold that a defendant who v…
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Aguiar v. State, 633 So. 2d 557 (Fla. 3d DCA 1994)…o v. State, 578 So. 2d at 328; Wagner v. State, 519 So. 2d 751 (Fla. 4th DCA 1988), disapproved of by, 596 So. 2d 438 (Fla.1992); Quarterman v. State, 506 So. 2d 50 (Fla. 2nd DCA 1987), disapproved of by, 596 So. 2d 438 (Fla.1992); Roseman v. State, 497 So. 2d 986 (Fla. 5th DCA 1986), the Florida Supreme Court has now established that a defendant may waive his constitutional right to be present at sentencing, and may be sentenced in absentia. Capuzzo v. State, 596 So. 2d 438 (Fla.1992). See also State v. Guri…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- Keys v. State, 473 So. 2d 800 (Fla. 5th DCA 1985)
- Bouthner v. State, 489 So. 2d 784 (Fla. 5th DCA 1986)
- State v. Cleve Andrew Mobley, 481 So. 2d 481 (Fla. 1986)
- Sanchez v. Maynard F. Swanson, Jr., 481 So. 2d 481 (Fla. 1986)
- Kosek v. State, 448 So. 2d 57 (Fla. 5th DCA 1984)
- Weir v. State, 490 So. 2d 234 (Fla. 5th DCA 1986)